Activist Judges Gone Wild

Floyd and Mary Beth Brown

5/21/2008 2:40:04 PM - Floyd and Mary Beth Brown

Who says judges aren’t a big deal? One needs only to look at California’s Supreme Court May 15 ruling on same-sex marriage to see the ramifications of judicial nominations. Those judges were even audacious enough to overturn a proposition vote by the state’s citizens. This decision in California by activist judges gone wild is a prime example of what John McCain means by judicial activism.

“It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future,” McCain said about the importance of judicial nominations.

McCain articulated the philosophy he will use in appointing Supreme Court justices while speaking May 6, 2000 in North Carolina. Senator McCain’s judicial philosophy centers around a “strict interpretation of the Constitution” and opposition to “judicial activism,” writes The Wall Street Journal. The senator took aim at the Supreme Court decision in 2005 on the Kelo eminent domain case. McCain called the decision a “power play” that “actually got the constitutional ‘thumbs-up’ from five members of the Supreme Court.”

“Real activism in our country is democratic,” McCain said in his assault on judicial activism. Continuing, he clarified the difference between “real activists” with “activist lawyers and activist judges”: Activist judges, “Don’t seek to win debates on the merits of their arguments; they seek to shut down debates by order of the court.” McCain described the kinds of candidates he would nominate to the high court – ones whom he could be certain of their “ability, wisdom, and demonstrated fidelity to the Constitution.” In contrast, McCain explained Barack Obama would choose judges based on their ability to be empathetic.

However, the thought of Senator McCain in the driver’s seat of judicial appointments is a touchy subject for social conservatives. Some believe he has not gone far enough on sweeping issues encompassing everything from abortion and religion, to gun and free speech rights.

When it comes to judges, McCain said in January, “It’s not social issues I care about. It’s the Constitution of the United States.” By itself, this is something most conservatives actually agree with, but there is still a legitimate cause for concern. On a positive note, McCain has praised justices Antonin Scalia, John Roberts, and Samuel Alito. Nevertheless, according to Curt Levey, director of a conservative advocacy group: “He’s been strong on judges, but he still has something to prove.”

Yet, there’s no denying the distance between McCain and Clinton/Obama on judicial appointments is vast. They are polar opposites – as far as right is from left, dark from light, high from low. McCain said, “My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power.” He said, “We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits,” and predicted that Obama will “attempt to justify judicial activism.”

To make a point, McCain contrasted Obama/Clinton with himself in how they approached the confirmation of judicial nominees Roberts and Alito. “Senator Obama was among the 22 senators to vote against this highly qualified nominee,” McCain said referring to Justice Alito. Both Clinton and Obama opposed Chief Justice Roberts.

However, McCain voted to confirm Stephen Breyer and Ruth Bader Ginsburg. “In the Senate back then,” he said, “we didn’t pretend that the nominees’ disagreements with us were a serious disqualification from office even though the disagreements were serious and obvious.” This stands in stark contrast with the typical liberal who opposes any nominee by a Republican president.

The big question is: What does “strict construction” actually mean? Is it carefully reading and following the words of the Constitution, or is it merely following case precedent? If the former, McCain, with the support of the court, could substantially roll back federal intrusion, power and taxation. If the latter, it would merely mean cruising along a little slower, but essentially in the same direction as Democrats. Hints of the former appear in Sen. McCain’s voting record.

The presidential nomination of judges is not just some esoteric idea. It is something that reaches down into every American’s daily life and affects how we live now and in the future. In the upcoming presidential election, this should be a matter of concern for every voter.